The saga of Pippins v. KPMG took another just turn today as Judge Colleen McMahon of the Southern District of New York emphatically sustained Magistrate Judge Cott’s refusal to allow KPMG to destroy thousands of hard drives.  I don’t title this post “Justice 1, Bullies 0” as a slap at KPMG.  Though I thought KPMG’s position anemic and oddly out-of-touch with an expert’s appreciation of user data on hard drives, KPMG isn’t the bully here.  No, the bully in my bullseye was the U.S Chamber of Commerce, which threw its fat wallet into the fray, selfishly attacking Magistrate Cott’s well-reasoned discovery order.  No friend of the court, the Chamber has been buying influence at the statehouse for so long, it must have decided to see what it could peddle down at the courthouse.  Happily, all that lobbyist lucre went right down the drain.  Kudos Judge McMahon! Continue reading →

Patel v. Havana Bar (E.D. Pa. Dec. 5, 2011) breaks no new ground in e-discovery, but it makes for interesting reading on several fronts.  First, it’s a prosaic personal injury case brought by a bar patron who suffered a severe fall, either because he was sober and the bar was negligent, or because he was wasted and the bar was negligent.  The plaintiff is uncertain of his sobriety, but he’s positive the bar was negligent.  The plain vanilla context is a reminder that the obligation of e-discovery competence runs to all counsel, even those who handle the bread-and-butter stuff that fills the dockets.  Second, the case presents dueling spoliation claims and bilateral sanctions.  Everyone gets slapped down!  Finally, the e-evidence at issue–FaceBook postings and video imagery–is a welcome respite from the usual squabbling over e-mail, and points up the variety of ESI that must be considered in setting a proper scope of preservation. Continue reading →

Earlier this year, I delivered the keynote address for a corporate event in Canada,  I called the talk, “Spoiled and Deluded: Ugly Truths about Electronic Search.”  I lamented how our happy experience with Google and online legal research has left us woefully unprepared (“spoiled”) for the extreme difficulty of search in e-discovery, then dashed a few misconceptions about the efficacy of searching ESI in accepted ways (“deluded”).  Dear Reader, we need to be brutally frank about search; because in a world where the organization of information has gone the way of the typewriter and file room, effective, efficient search is something we cannot manage without.

Search has two non-exclusive ways to fail: your query will not retrieve the information you seek and your query will retrieve information you weren’t seeking.  The measure of the first is called “recall,” and of the latter, “precision.”  We want what we’re looking for (high recall) and only what we are looking for (high precision).

Recall and Precision aren’t friends.  In e-discovery, they’re barely on speaking terms.  Every time Recall has a tea party, Precision crashes with his biker buddies and breaks the dishes. Continue reading →

There was an old farmer who always took the trophy in the fishing tournament with the biggest catch.  The new game warden became suspicious and demanded the farmer take him fishing.  In the middle of the lake, the farmer pulls out a stick of dynamite, lights it and throws it into the water.  Boom!  When hundreds of stunned fish float to the surface, the farmer takes out a net and snags the biggest one.  The warden is outraged.  “You can’t do that!” he screams, “Do you know how many laws you’ve broken?”  Calmly, the farmer lights another stick of dynamite, hands it to the game warden and says, “Well boy, you gonna talk or you gonna fish?”

Litigants look to lawyers for guidance in preserving electronic evidence, and lawyers, clueless about information technology, hand them a stick of dynamite and say, “go fish.” Continue reading →